The Legal Construction of Race and Religion in British Malaya

As a major crossroads for centuries, the Malay Peninsula has a long history of ethnic diversity and cross-fertilization. Parts of the Peninsula, particularly those coastal areas with the most exposure to trade routes, were already multiethnic by the time the British arrived. But economic forces from the middle of the nineteenth century accelerated the rate of demographic change. British commercial interests recognized the tremendous potential for tin production. With the assistance of Malay rulers and ethnic Chinese business interests, laborers were brought from China by the hundreds of thousands to work in tin mines. Likewise, with the rubber industry booming by the turn of the twentieth century, British commercial interests turned to South Asia for laborers to work on vast rubber plantations. The bulk of Indian migrants were Tamil laborers, but smaller numbers of non-labor migrants had already been brought from Ceylon and South India to work for the colonial administration. Still more Indian lawyers, doctors, and merchants immigrated, resulting in a mix of highly educated professionals and desperately poor laborers.

While most accounts of immigration to the Malay Peninsula focus on the influx of Chinese and Indian workers, it is important to note that, by 1931, as many as 244,000 of the 594,000 Malays in the former protectorates were either first-generation arrivals from the Netherlands, East Indies, or descendants of Indonesian migrants who had arrived after 1891 (Andaya and Andaya Reference Andaya and Andaya2001: 184).Footnote ² And just as Chinese and Indian migrants were a mix of various linguistic groups, “Malay” migrants were similarly diverse. Contemporary Malaysia is overwhelmingly a nation of immigrants.

Colonial policy tended to overlook the tremendous ethnic and linguistic diversity internal to each of these groupings. Each “race”Footnote ³ was treated as a homogeneous block, and census categories were merged over time, producing new legal and social identities (Hirschman Reference Hirschman1986, Reference Hirschman1987). As in other times and places, the legal construction of racial boundaries served economic and political objectives (Mamdani Reference Mamdani2012; Mawani Reference Mawani2009; Merry Reference Merry2000). A case in point is the now-taken-for-granted term “Malay,” which was socially, politically, and legally constituted through specific policies of colonial governance, such as land law (Shamsul A. B. Reference Shamsul2001; Milner Reference Milner and Gladney1998). The first legal definition of Malay came by way of the Malay Reservations Act,Footnote ⁴ which defined a Malay as “a person belonging to any Malayan race who habitually speaks … any Malayan language and professes the Moslem religion” (Voules Reference Voules1921: 506). The original purpose of the Reservations Act was to set land aside for traditional agricultural pursuits, first among them rice cultivation. The Act was made in the name of preserving Malay interests and “way of life,” but the reality had more to do with limiting the expansion of ethnic Chinese business interests, barring Malays from rubber production, and preserving adequate food supplies in the colony. While the official and unofficial bases for the legal definition of “Malay” were context-specific and ultimately short-lived, the legal category remained virtually intact until today, as enshrined in Article 160 (2) of the present-day Federal Constitution.

Racial designations became increasingly important for access to government jobs and education. As always, the political context is crucial. By the turn of the twentieth century, ethnic Chinese and ethnic Indian communities comprised nearly half the total population of British Malaya. It was also clear that the vast bulk of the Malay community had missed out on the economic boom. The British sought to make good (at least symbolically) on their stated policy of protecting the interests of the Malays through targeted initiatives. The Malay College was established in 1905 to provide English education to the children of Malay elites, and a Malay Administrative Service was created around the same time to assist the Malayan Civil Service (Means Reference Means1972: 34). Non-Malays were barred from these institutions regardless of any qualifications that they might have had. These race-based concessions were designed to address Malay grievances and bolster the position of the Malay elite as a strategic ally to the British vis-à-vis the increasingly large and dynamic ethnic Chinese community.Footnote ⁵

Even with these concessions, Malay nationalists believed that their community faced an existential threat. It is not difficult to understand why. In the Federated Malay States, the ethnic Chinese community tripled in size (from 163,422 to 433,244) in the two decades from 1891 to 1911, while the ethnic Indian community increased more than eight times (from 20,154 to 172,465) in the same period (Puthucheary Reference Puthucheary1978: 8). The 1911 census records Malays as comprising only 51 percent of the total population, and this figure declined further to 49.2 percent in the 1931 census (Noor Reference Noor2004: 18). An Aliens Ordinance was issued by the colonial administration to regulate the entry of new workers beginning in 1933, but the Malay share of the population remained less than half of the total population (49.5 percent) by the time of the 1947 census. The ethnic Malay community was frightfully concerned that, with independence, they would be a vulnerable minority, subject to domination by the ethnic Chinese and (to a far lesser extent) ethnic Indian communities.

The Formation of Race-Based Political Parties

Following the Second World War, Britain began to prepare Malaya for eventual independence. A “Malayan Union Plan” was issued in 1945, in the form of a White Paper. It proposed a unitary state, including the Federated Malay States, the Unfederated Malay States, Penang, and Melaka. Under the Plan, the Sultans would retain their positions but lose their formal sovereignty. Citizenship would be extended to all residents of Malaya and citizens would enjoy equal rights, with no preferential treatment by race. Varying responses to the Malayan Union Plan exposed the complex and competing interests of the ethnic Malay, Chinese, and Indian elite, as well as complex class and ideological dimensions within each group.Footnote ⁶ Fearful that the Malay community would be overwhelmed by the economic might of the Chinese community under the terms of the plan, Malay nationalists mobilized in opposition. Out of this effort emerged the United Malays National Organization (Pertubuhan Kebangsaan Melayu Bersatu), more popularly known by its acronym, UMNO. The Malayan Union Plan was swiftly defeated, and UMNO was transformed into a formidable political party. Later that year, the Malayan Indian Congress (MIC) was founded, followed by the Malayan Chinese Association (MCA), which was established mainly as a counterweight to the (Chinese) Malayan Communist Party. These three race-based parties would soon dominate in the independence period.

In lieu of the Malayan Union, British officials negotiated an interim agreement with UMNO leaders and with the Sultans. The result was the Federation of Malaya Agreement of 1948, which cut against the spirit of the Malayan Union Plan on virtually every count. Requirements for citizenship were made more restrictive, the sovereignty of the Sultans was preserved, and a federal structure was established with powers reserved for the states (Andaya and Andaya Reference Andaya and Andaya2001: 268). The Federation of Malaya Agreement also required that the British High Commissioner “safeguard the special position of the Malays and the legitimate interests of the other communities” (Clause 19 (1) (d)). Accordingly, the colonial administration continued to allocate civil service positions exclusively to Malays.Footnote ⁷ Scholarships, special business permits, and licenses were also reserved for Malay business and tradespersons (Huang-Thio Reference Huang-Thio1964).

Despite strong cross-pressures, UMNO, the MCA, and the MIC had sufficient mutual interest to cooperate as a coalition (“The Alliance”) in the 1955 election.Footnote ⁸ The Alliance sidestepped communal differences and focused their campaign on the immediate goal of independence. Their cooperation paid off. The Alliance won a stunning 81 percent of the popular vote and all but one of 52 constituencies (Andaya and Andaya Reference Andaya and Andaya2001: 276). In the process, they had discovered a winning formula: Each of the component parties was race-based, and each spoke in the name of its respective community. Inter-communal differences were managed through behind-the-scenes bargaining and compromise. The promise of continued success at the ballot box proved a sufficient incentive for the race-based parties to continue to work together. This delicate balancing act soon constituted a fundamental feature of Malaysian politics: Race-based parties generate political mileage by playing to their communal base, yet brinkmanship requires constant backroom political management, lest differences spin out of control. The strong Alliance mandate in the 1955 elections was an encouraging sign that political elites could overcome significant inter-communal differences. But the most profound challenge facing the Alliance was agreeing on the basic contours of an independence constitution. Thorny issues such as the status of Malay privileges and the requirements of citizenship had been stumbling blocks in the past. To secure independence, the Alliance needed to work constructively with the Reid Commission, which was charged with drafting the Independence Constitution. The final shape of the Independence Constitution, including clauses on Islamic law and liberal rights, reflected the compromises that were struck to bridge the competing interests of the major stakeholders.

Equal Citizenship vs. Race-Based Privileges in the Malayan Constitution

One of the most significant bargains in the new constitution concerned citizenship for ethnic Chinese and ethnic Indian migrants. The Federation of Malaya Agreement extended citizenship only to those who declared permanent settlement, could establish that they were residents for fifteen of the previous twenty-five years, and had competence in English or the Malay language.Footnote ⁹ By these criteria, Andaya and Andaya (Reference Andaya and Andaya2001) estimate that less than 10 percent of ethnic Chinese qualified for automatic citizenship (268). A more relaxed citizenship requirement was therefore among the most important objectives for the ethnic Chinese and ethnic Indian communities. In a departure from the Federation of Malaya Agreement, the Independence Constitution extended citizenship to all those who were born in the Federation or who satisfied certain other requirements.Footnote ¹⁰ The number of non-Malay citizens soared as a result of this concession.Footnote ¹¹ In return, Malay special privileges were affirmed in the new Constitution.Footnote ¹² Article 153 reproduced the wording of the Federation of Malaya Agreement almost verbatim, declaring “It shall be the responsibility of the Yang di Pertuan Agong [the Supreme Head of State] to safeguard the special position of the Malays and the legitimate interests of other communities … .”Footnote ¹³ The text simply replaced the British High Commissioner with the Supreme Head of State as the authority entrusted with safeguarding Malay rights.Footnote ¹⁴ Article 153 details these privileges, which include quotas for Malay entry into the civil service (clause 2), quotas for Malay business licenses and permits (clauses 6 and 8), special scholarships and educational facilities for Malay students (clause 2), and quotas for Malay students at universities (clause 8a, added in 1971). Additional provisions entrenched other privileges. Article 89, for example, carried over the colonial policy of allocating tracts of land for the exclusive ownership and use of Malays.

The provision of public resources along racial lines required a legal definition of “Malay.” Once again, colonial-era frameworks provided a ready model for adoption. Article 160 (2) of the Constitution defines a Malay as “a person who professes the religion of Islam, habitually speaks the Malay language, [and] conforms to Malay custom … .” This definition was virtually identical to the legal provisions in the Malay Reservations Act of 1913, where colonial authorities had defined a Malay as “a person belonging to any Malayan race who habitually speaks … any Malayan language and professes the Moslem religion.” As a result, the legal conflation between Malay and Islam was carried over and entrenched in the Independence Constitution.

Islam as the Religion of the Federation

Another key passage in the Constitution is Article 3 (1). It reads, “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.” It is no surprise that UMNO pressed for a religion clause as an expression of Malay identity. Malays were equated with Islam by way of state law as far back as the Malay Reservation Act of 1913. According to state law and popular convention, to be Malay was to be Muslim. This conflation of race with religion in the popular imagination is most clearly demonstrated by the term used to describe conversion itself. An individual who converts to Islam is said to have “masuk Melayu” (entered or become Malay). For UMNO, a religion clause would serve as an expression of state identity that was synonymous with race.

What is remarkable about the inclusion of Article 3 (1) in the Independence Constitution is that UMNO had gained the consent of its partners in the Alliance, the Malayan Chinese Association (MCA) and the Malayan Indian Congress (MIC). This cooperation partly reflected UMNO’s dominant position within the Alliance. But equally, the support of the MCA and the MIC was part of a complex political bargain struck between political elites in the critical years leading up to independence. The Alliance submitted a joint memorandum to the Reid Commission requesting that, “The religion of Malaysia shall be Islam.” The memorandum further specified that “the observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religions, and shall not imply that the State is not a secular State” (Fernando Reference Fernando2006: 253). No doubt, this proviso was necessary to secure agreement from the MCA and the MIC, the non-Muslim, non-Malay component parties of the Alliance.

Ironically, resistance to a religion clause came from those figures who were meant to be the guardians of Islam: the Sultans. As it turns out, the Sultans were concerned that a religion clause would impinge on their mandate as the religious leaders of their respective states. This political posture was a direct legacy of colonial bargains, going back to the Treaty of Pangkor where the Sultans were granted jurisdiction over matters of religion and custom while relinquishing the rest of their authority (see Chapter 2). The fact that the Sultans opposed a religion clause, while the non-Muslim MCA and MIC were willing to oblige, further suggests that the inclusion of Article 3 had little to do with religion qua religion, and more to do with the complicated bargain being negotiated.

The Reid Commission initially rejected the Alliance proposal, based on objections that had come from the Sultans. However, the tide changed through UMNO’s persistence, lobbying from within the Reid Commission by Justice Abdul Hamid (who had proved to be a vociferous advocate for a religion clause), and substantive compromises among stakeholders.Footnote ¹⁵ The Sultans ultimately agreed to a constitutional provision stating that Islam is the religion of the federation in return for their own constitutionally entrenched right to administer Anglo-Muslim law at the state level. Article 3 of the Constitution was finally drafted to read, “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” In addition to the second part of the clause safeguarding the practice of other religions, additional provisions were meant to ensure that Article 3 would not infringe on the rights of non-Muslims. Clause 4 of Article 3 guarantees, “Nothing in this Article derogates from any other provision of this Constitution.” Article 8 (1) declares “all persons are equal before the law and entitled to equal protection of the law.” Article 8 (2) expands upon this guarantee by specifying “… there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law … .” Article 11 directly addresses freedom of religion by further guaranteeing that “Every person has the right to profess and practice his religion … .” These specifications were no doubt meant to underline the commitment that Article 3 would not deprive citizens of fundamental liberties provided for in the Constitution. Despite these various guarantees, the vague phrase “religion of the Federation” would become the subject of contention decades later.

Ironically, all the provisions that were meant to secure fundamental rights would eventually become instruments and objects of litigation. Even within the same constitutional provisions, we can identify axes of legal tension. For example, Article 8 (1) declares “all persons are equal before the law and entitled to the equal protection of the law.” Clause 5 of the same article carries the additional proviso that “[t]his Article does not invalidate or prohibit any provision regulating personal law … .” Thus, the Anglo-Muslim, Anglo-Hindu, and Chinese customary law regimes – all of which were discriminatory against women – were exempt from the Constitution’s commitment to guarantee equal protection under the law.Footnote ¹⁶ Similarly, Article 11, which addresses freedom of religion, provides that, “Every person has the right to profess and practice his religion … .” However, the third clause of the same article states that “every religious group has the right to manage its own religious affairs … .” Article 11 thus provides for individual rights (the right of the individual to practice in accordance with his or her religious conviction) while it gestures to collective rights (the right of each religious community to manage its religious affairs). This celebration of rights on paper did not anticipate the significant legal tensions that this framework would produce between conflicting visions of individual and communal rights to “freedom of religion.” Compromise among the drafters of the Constitution only sowed the seeds for protracted legal battles decades later.Footnote ¹⁷

Substantive Provisions of Anglo-Muslim Law

Leaving aside the contested symbolism of Article 3, more clearly defined arrangements for the administration of Anglo-Muslim law are specified elsewhere in the Constitution. The Ninth Schedule establishes the basic institutional foundation, by delineating the powers of the states vis-à-vis the federal government. The states were granted jurisdiction over:

The administration of religion is a state-level enterprise because of the separate treaties that the British had forged with local rulers. The Sultans had managed to preserve their role as the heads of religion within the federal structure of the Federation of Malaya Agreement of 1948, and later they managed to entrench those powers in the Independence Constitution.Footnote ¹⁹ A comparison of these consecutive legal frameworks reveals a high degree of path dependence. The bifurcated legal system that first emerged in the state of Perak in 1874, as a product of the Treaty of Pangkor (later replicated in other Malay protectorates), came to be entrenched in the Federation of Malaya Agreement. Later still, similar wording was carried over into the Independence Constitution (now the Federal Constitution). In this bifurcated legal system, the federal courts came to administer all matters of civil, criminal, and administrative law, whereas state jurisdiction was limited to issues of personal status law within the Muslim community, including such matters as marriage, divorce, child custody, religious status.

Shariah Court versus Civil Court Jurisdiction

One of the distinct institutional legacies of the colonial period was the formation of Muslim courts (later renamed “shariah” courts) that applied Muslim law (later rebranded “shariah” law). Shariah court decisions were subject to review by the civil courts. However, the government amended Article 121 in 1988. A new clause specified that the High Courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” The new provision, Article 121 (1A), was meant to demarcate a clear division between the functions of the civil courts and the duties of the shariah courts. Muslims would henceforth be subject to the exclusive jurisdiction of the shariah courts in matters of religion. In practice, however, dozens of high-profile cases presented difficult legal conundrums (Chapter 4). These cases generated enormous political controversy and became important focal points for civil society mobilization (Chapter 5). The spectacle ultimately shaped popular understandings of Islam and its place in Malaysian politics and society (Chapter 6, 7). Because Article 121 (1A) plays a central role in this litigation, it is useful to provide context on the origins of the amendment itself.

Before the 1988 constitutional amendment, the civil courts exercised jurisdiction in matters related to the shariah courts, but only on occasion. For example, in Myriam v. Mohamed Ariff, a Muslim woman initiated a civil suit to challenge her ex-husband’s custody of their two children.Footnote ²⁰ In Boto v. Jaafar, another Muslim woman sued her ex-husband in a civil court for equal division of matrimonial assets rather than settle for three months of maintenance, according to the provisions that applied in the Muslim courts.Footnote ²¹ But these sorts of cases were less frequent than one might expect.Footnote ²² Generally speaking, the civil courts adjudicated family law cases between Muslims only when there was a solid legal basis.Footnote ²³ Even then, it appears that the civil courts overturned shariah court decisions only with reluctance.Footnote ²⁴ Figure 3.1 illustrates the total number of High Court decisions that concerned Islam between 1936 and 2014. One notes that there were very few High Court rulings similar to Myriam v. Mohamed Ariff or Boto v. Jaafar. In other words, these decisions were the rare exceptions, not the rule. In fact, before the adoption of Article 121 (1A), High Court decisions mentioning Islam were fewer than two per year on average, and the total number of decisions touching on Islam never surpassed five in one year. It is one of the great ironies that High Court decisions touching on Islam increased significantly only after the passage of Article 121 (1A), for reasons examined later.

Figure 3.1:

Reported Civil Court Decisions Referencing Islam, by Year

Source: Data compiled from the Malayan Law Journal and the Current Law Journal.25

Nonetheless, a handful of activists, academics, and government officials advocated for the adoption of a constitutional amendment that would prevent the federal civil courts from overturning state-level shariah court decisions. The most important advocate for such a change was Ahmad Mohamed Ibrahim (1916–1999) who was the most prominent early advocate for an increased role of Islamic law in the Malaysian legal system. It is useful to know something of Ahmad Ibrahim’s formative years to understand his approach to Islam in the Malaysian legal order. Ibrahim was born in Singapore and studied law in the United Kingdom. Upon returning to Singapore, Ibrahim served as a chief lawyer in the infamous Maria Hertogh (Natrah) child custody case.Footnote ²⁶ The case precipitated riots when the colonial administration of Singapore ruled that a girl who had been adopted into a Muslim family must be returned to her Dutch biological parents.Footnote ²⁷ For nationalists at the time, the Natrah case symbolized the colonial administration’s complete disregard for Islam. Ibrahim was thirty-four years of age at the time, and his work on the case is said to have had a profound effect on his outlook. When he immigrated to Malaysia in 1969, he became an early and outspoken advocate for a more expansive role for Muslim law and the formalization of Muslim court functions vis-à-vis the civil courts. As a professor of law at the University of Malaya and later as the Dean of the Faculty of Law at the International Islamic University of Malaysia (IIUM), Ibrahim advocated the introduction of a constitutional amendment that would safeguard the jurisdiction of the shariah courts vis-à-vis the federal civil courts. He wrote of the instances in which the civil courts had overturned shariah court decisions, citing them as evidence of the need to expand and defend the role of the shariah courts in the Malaysian legal system.

In Ahmad Ibrahim’s account, the government formed a committee headed by Tan Sri Syed Nasir Ismail to examine “the unsatisfactory position of the shariah courts … and suggest measures to be taken to raise their status and position” (Ibrahim Reference Ibrahim2000: 136). The committee stressed the need to improve the physical infrastructure of the shariah courts, improve the training of judges, and raise the stature of the shariah courts vis-à-vis the civil courts. One of several committee recommendations for raising the stature of the shariah courts was to oust the civil courts from shariah court jurisdiction by way of a constitutional amendment. Mahathir Mohammed endorsed the proposal and, in 1988, introduced a constitutional amendment declaring that the High Courts of the Federation “shall have no jurisdiction in any respect of any matter within the jurisdiction of the shariah courts.” Opening debate in the Dewan Rakyat, Mahathir explained that this amendment was necessary to protect the jurisdiction of the shariah courts vis-à-vis the federal civil courts:

For the record, no primary source evidence from the period supports Mahathir’s contention that civil court decisions had produced “a feeling of dissatisfaction among Muslims in the country.” The civil courts rarely overturned shariah court rulings and, in the rare cases when they did, these decisions were not covered extensively in the press. A review of Malay language newspaper coverage revealed that, among the four cases most often cited by Ahmad Ibrahim as examples of civil court interference, the newspapers covered none of them.Footnote ²⁹ The discussion did not go far beyond the small circle of legal professionals who had promoted Article 121 (1A) to elevate the symbolic stature of the shariah courts vis-à-vis the federal civil courts.

Given the profound impact of Article 121 (1A) on Malaysian law and politics, the brevity of parliamentary debate is striking. The discussion was short partly because seven leading Democratic Action Party (DAP) members (including Lim Kit Siang and Karpal Singh) were being held in detention under the Internal Security Act in the aftermath of Operation Lalang. Discussion of Article 121 (1A) was also overshadowed by the debate on a second constitutional amendment, introduced simultaneously, that weakened the independence of the federal courts vis-à-vis the executive.Footnote ³⁰

One of the few reservations in the parliamentary debate came from Chua Jui Meng of the MCA. He posed the hypothetical question: “If a non-Muslim is falsely accused in the shariah courts, will he be able to appeal to the High Court?”Footnote ³¹ Chua’s question proved prescient years later, albeit not in the exact scenario that he posed in Parliament. However, such concerns were quickly brushed aside, and the amendment passed with the support of 142 Members of Parliament.Footnote ³² Having passed the Dewan Rakyat, the constitutional amendment made its way to the upper house of Parliament, where there were even fewer opposition figures. Deputy Prime Minister Abdul Ghafar bin Baba introduced the amendment in the Dewan Negara with the same reasoning that Mahathir had provided previously:

Several UMNO loyalists voiced their emphatic support. Tuan Haji Hamid Araby bin Haji Md. Salih summed up the praise for the amendment:

Despite the colorful praise for the amendment and dogmatic assertions of shariah court dignity, there was surprisingly little press coverage of Article 121 (1A). It is hard to know what to make of this, as one would expect UMNO politicians to trumpet their Islamic credentials in the popular press in the same manner that they had in Parliament. However, it seems that the introduction of Article 121 (1A) was overshadowed by the more immediate spectacle of Mahathir asserting executive dominance over the judiciary.Footnote ³⁵ Newspaper coverage focused on Article 121 (1), which weakened judicial independence, but not clause 1A. Thus, clause 1 A was adopted with little debate or popular awareness outside of a small number of lawmakers, legal scholars, and practitioners. Two decades later, the Article 121 (1A) cases became the primary focal point of tension concerning the “religious” vs. “secular” identity of the Malaysian state.